The Supreme Court assessed the constitutionality of five provisions of the Pennsylvania Abortion Control Act of 1982 (amended in 1988 and 1989). The Court upheld four of the five provisions, rejecting the third one (which required spousal notification for an abortion) based on the undue burden standard: ‘‘A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’’
This standard departs from Roe v. Wade, 410 U.S. 113 (1973), and its progeny, which required that abortion restrictions be subject to strict scrutiny: limits on abortion must be essential to meeting a compelling state interest. The Casey Court claimed that its holding was more consistent with the spirit and letter of Roe than most of the Court’s post-Roe abortion opinions.
Thus, the Court held that a state may restrict abortion by passing laws that may not withstand strict scrutiny but do not result in an undue burden for the pregnant woman. The Court upheld provisions in the Pennsylvania statute that would have most likely not survived strict scrutiny: ‘‘a woman seeking an abortion [must] give her informed consent prior to the abortion procedure, and ... she [must] be provided with certain information at least 24 hours before the abortion is performed’’ (that is, she must be given the facts of fetal development, risks of abortion and childbirth, and information about alternatives), and ‘‘the Act imposes certain reporting requirements on facilities that provide abortion services.’’ The other two surviving provisions would likely have passed strict scrutiny: parental informed consent for minors (with a judicial bypass option) and a medical emergency exemption from the 24-hour informed consent and the parental and spousal notification provisions.
Although the Court upheld Roe as precedent, it rejected not only Roe’s strict scrutiny standard but also its trimester framework (which Webster v. Reproductive Health Services, 492 U.S. 490, 1989) had already discarded). This framework, according to the Court, was too rigid as well as unnecessary to protect a woman’s right to abortion. The Court did reaffirm Roe’s claim that fetal viability is the place in pregnancy when the state has a compelling interest in protecting prenatal life. But this is at the state’s discretion, since, according to the Court, the Constitution does not require that a state protect prenatal life after viability and prior to birth.
Casey affirmed abortion as a liberty grounded in the Fourteenth Amendment’s due process clause, though it offered two reasons why the Court could not overturn Roe. First, because people arrange their lives with the abortion right in mind, they have a reliance interest in the preservation of the right. Second, overturning Roe would result in the Court losing respect and legitimacy in the public’s eye, even if rejecting Roe would have in fact corrected a constitutional error.
Casey is an important decision because it upheld Roe while at the same allowing for some restrictions on abortion that would not likely have passed the strict-scrutiny standard of prior Courts.
FRANCIS J. BECKWITH
References and Further Reading
Cases and Statutes Cited
See also Abortion; Due Process; Due Process of Law (V and XIV); Privacy; Reproductive Freedom; Roe v. Wade, 410 U.S. 113 (1973); Webster v. Reproductive Health Services, 492 U.S. 490 (1989)